Sowicz v. United States, Civ. A. No. 70-2915.

• Decision Date: 20 December 1973
• Docket Number: Civ. A. No. 70-2915.
• Citation: 368 F. Supp. 1165
• Parties: Michael SOWICZ v. UNITED STATES of America v. NORTHERN METAL COMPANY.
• Court: U.S. District Court — Eastern District of Pennsylvania

368 F. Supp. 1165

Michael SOWICZ v. UNITED STATES of America v. NORTHERN METAL COMPANY.

Civ. A. No. 70-2915.

United States District Court, E. D. Pennsylvania.

December 20, 1973.

COPYRIGHT MATERIAL OMITTED

Bert Zibelman, Freedman, Borowsky & Lorry, Philadelphia, Pa., for plaintiff.

Richard Meltzer, Asst. U. S. Atty., Philadelphia, Pa., for the United States.

Andrew C. Hecker, Jr., LaBrum & Doak, Philadelphia, Pa., for Northern Metal.

FINDINGS OF FACT

NEWCOMER, District Judge.

Pursuant to Rule 52(a) of the Federal Rules of Civil Procedure, the Court makes the following findings of fact.

1. Plaintiff Sowicz was a sixty-two year old longshoreman who was employed in that capacity on December 18, 1969 by the Northern Metal Company, third party defendant herein.

2. Northern Metal was a stevedoring company which had entered into contract

DAHC 21-69-D-0055-P003 (hereinafter "contract") with the United States.

3. Pursuant to the contract, Northern Metal was to process and ship privately owned vehicles (hereinafter "POVs") which belonged to military personnel.

4. POVs were processed as follows:

(a) The cars were driven to Northern Metal by their owner or his designee and were stopped at the main gate.

(b) At the main gate the cars were directed to the POV building which is 300 to 600 feet away. There are two stop signs between the main gate and the POV building.

(c) The orders of the car owner (sponsor) were reviewed at the POV office to determine whether he was entitled, pursuant to Army regulations, to ship his vehicle. If so, Army-supplied form DD788 was completed as required by Army regulations.

(d) A Northern Metal employee, in the presence of the vehicle owner, examined each POV for external damage. Any such damage was noted on the Army-supplied form DD788 which was then signed by the owner.

(e) Pilferable items were removed from the vehicles, placed in a carton and locked in the trunks of the cars. A list of said items was made by Northern Metal pursuant to Army requirements.

(f) A Northern Metal employee then drove each vehicle to a degassing area pursuant to Army regulations. The brakes of the car were applied to assure that they were operational before the vehicle was driven from under the canopy of the POV office.

(g) If anything was found to be wrong with a car prior to its being loaded, a note to that effect was placed on the windshield of the car. Such a car would then be given special attention while being stuffed.

(h) The degassing area was between 150 feet and 300 feet from the POV office. There was one stop sign en route. Cars were stopped by their own brake systems upon arrival at the degassing area.

(i) At the degassing area, cars were backed onto inclined ramps and gas was drained from them.

(j) The gas removed from the vehicles was the property of the United States government and was either picked up by the Army or put into vehicles shipped to the United States from foreign installations.

(k) After degassing the cars were driven approximately 400 feet to a storage area; there were two stop signs en route. The cars were stopped by their own brake systems at the storage area. When the vehicles reached the storage area, their hoods were opened and their engines were left running.

(l) When the engines stopped, batteries were disconnected, terminals were taped, and the cars were locked as provided in Army regulations. Keys were returned to the POV office.

(m) Cars remained in the parking or storage area from 15 days to a period of months. The Army's Military Sea Transportation System booked vessels on which military cargo was transported and arranged for arrival at Northern Metal of containers for use in shipping POVs when the ship was a container vessel.

(n) When a vehicle was booked on a container ship by the Army, it was towed with its battery still disconnected to the pier area with someone inside to steer. The cars were usually moved to the pier a day or more before being stuffed into containers. Upon arrival at the pier area, the cars were stopped by their own braking systems. Someone was inside to steer during these operations.

(o) Containers were stuffed on the day before the ship on which they were to be loaded arrived.

(p) Cars were brought from within the pier shed to the doorways of the pier with someone inside to steer; they were stopped at the doorways by their own braking power. When cars were moved from within the pier shed to the pier itself, if the man steering detected any braking difficulty, he would tell others and the car would be pushed into a container by hand.

(q) Cars were pushed into containers by modified forklift trucks from which the forks had been removed and onto the front of which a tire had been placed. While a car was being pushed into a container, there was a longshoreman in it to steer.

(r) Cars had to be pushed up a ramp of approximately six inches to get into containers.

(s) POVs were stopped in the container by their own brakes.

(t) After the POV was stopped, each wheel would be chocked (secured) by the longshoreman working inside the container.

5. On December 18, 1969, plaintiff was working as a wood butcher at Northern Metal. It was not unusual for a longshoreman to be hired as a carpenter. Five wood butchers constituted a group. The group in which Sowicz was working included Charles Angelus (Sowicz's partner or breaster), John Galle, Tracey and a chock man, Stanley Sezpiel.

6. Plaintiff had never worked as a wood butcher in the past.

7. On December 18, 1969, containers were not being stuffed differently than at any other time over a period of years.

8. Between 3:00 p. m. and 5:00 p. m. on December 18, 1969, Sowicz was struck by a car being pushed into a container in which he was working.

9. The platform lights on the pier were on at the time of the accident.

10. Sowicz, at the time he was struck, was standing at the rear of a vehicle which had been chocked in the container. He was awaiting the arrival of a second vehicle.

11. The vehicle by which Sowicz was struck was being steered by William Taras (nickname, "Calhoun") who had been a longshoreman for 35 years. Michael Libucki was driving the forklift by which the vehicle was pushed into the container.

12. Taras had gotten into the car when it was near the doorway of the pier shed, approximately 10 or 15 feet from the container. This was his first contact with the car. The car was not moving when Taras got into it.

13. After the car which he was steering was pushed into the container, Taras applied the brake pedal which went to the floor. He yelled, "no brakes, no brakes." The full length of the car was in the container when he yelled.

14. Prior to the POV in question being pushed into the van, Taras the driver did not test the brakes.

15. Joe Rose, Burt Raskin (carpenter foreman), Adolph Kaspar (part-time timekeeper), Lt. Selman (an Army lieutenant stationed at Northern Metal) and Henry Guz (longshore gang boss) were at the scene of the accident after it occurred.

16. Several men tested the brakes on the vehicle after the accident and confirmed that the brake pedal went all the way to the floor. Kaspar does not remember testing the brakes himself or telling anyone that he did so. He does remember observing others test the brakes and he saw that the pedal went to the floor.

17. Lt. Selman made certain notes after the accident which pertained only to possible damage to the automobile.

18. Burton Raskin (carpenter foreman) made out an accident report which he gave to timekeeper Kaspar. Selman was talking to Raskin and Kaspar when Raskin delivered his report. The slip of paper on which Raskin made his report contained a notation regarding the number of the van in which Sowicz was working at the time of the accident. Kaspar, in his office, attached Raskin's notes by paper clip to a report which Kaspar himself made. While the report was on his desk, awaiting duplicating, Lt. Selman asked if he could have a copy. Kaspar agreed and delivered the report to Selman. Although he looked for the report on many occasions, Kaspar was not able to locate it until, having returned to Northern Metal for a post-retirement visit, he found a copy in his old desk. Raskin's notes were not attached to the copy of the report.

19. The ranking military officer at Northern Metal had ordered that the Army be given copies of all accident reports immediately following an accident.

20. During the loading operation Army personnel were periodically present to observe the operation and to prevent damage or pilferage to the POVs.

21. Any request made by Army personnel to Northern Metal employees during the loading of the cars was in regard to the prevention of damage to the vehicles.

22. Northern Metal personnel were present to supervise their employees at each stage of the processing and loading operation.

23. The daily activities of the two to three members of the Army personnel present at the Northern Metal pier would consist of walking through the area noting cars that had pilferable items, and periodically observing the operation of the Northern Metal employees stuffing POVs into the containers. The purpose of these observations was to note any damage which might occur during the loading.

24. Army personnel had no authority to hire Northern Metal employees, pay their wages, fire Northern Metal employees, assign the men to perform specific tasks, or order them to begin or stop work.

25. The Army did not supply the tools such as tow motor, chocks, hammers or nails to the Northern Metal employees.

26. At no time did the Army or Northern Metal make a mechanical inspection of any of the vehicles brought to the pier for overseas shipment.

27. The defendant relied on its own military personnel to bring their privately owned vehicles to the terminal in good operating condition.

28. If the Northern Metal's employees were aware of a braking deficiency in any particular vehicle, they would...